Patent Office Scrutiny Holds Lessons for All Federal Managers
The U.S. Patent and Trademark Office (USPTO), a ‘Best Place to Work’ front-runner and model for telework in government, has received significant media scrutiny lately, raising issues about managing a mobile and remote workforce, time and attendance certification, among others.
An inspector general report and media reports about the issues at USPTO came out in late July and August, after Congress had left for recess, but oversight and hearings on the issues raised in the reports are all but guaranteed.
Both Rep. Darrell Issa (R-CA), chairman of the House Oversight and Government Reform Committee, and Rep. Frank Wolf (R-VA), chairman of the House Commerce, Justice, Science and Related Agencies Appropriations subcommittee, have separately written Commerce Secretary Penny Pritzker about the issues and called for congressional investigations.
“Despite patent examiners generally receiving salary at the top of the federal pay scale – some making $148,000 a year – it appears the telework program is not serving its intended purpose to produce more efficiency. The waste, fraud, abuse and mismanagement described by the Post is unacceptable,” Issa wrote in his letter to Secretary Pritzker.
“The employees that have been abusing telework and committing time fraud should be fired today. So too should the senior USPTO managers who sought to hide these troubling findings in the report provided to the inspector general,” Wolf said in his letter to Secretary Pritzker. “I am also asking that you refer these individuals and all relevant findings to the Justice Department for prosecution for any fraud that has taken place. If the department determines criminal fraud has occurred, they should be prosecuted to the full extent of the law,” Wolf continued.
The management problems at USPTO came to light based on media coverage in The Washington Post of an inspector general report on paralegals at the Patent Trial and Appeal Board (PTAB), a component of USPTO, being paid for work while teleworking while in reality there was little work to be accomplished and managers directed employees to bill idle time under an “Other Time” pay code.
The IG report on the PTAB found that agency managers, including its senior-most personnel, were aware of the problems the IG was investigating but took little action to stop the offending behavior. The IG documented over $5 million in salary and performance awards paid to paralegals and other employees over a five year period, with some paralegals charging over half of their time to the “Other Time” pay code described by one senior manager as the “I don’t have work but I’m going to get paid code.”
The IG report also documented that some PTAB managers felt they were unable to address the “Other Time” productivity issues of their employees, fearing a conflict with the employee’s union. The IG report also documents the reticence of agency managers to utilize employee connectivity software that maintains communication and provides for oversight of productivity of remote workers for fears of being perceived as “Big Brother,” despite the fact that employees specifically agreed in telework agreements to the agency and managers having access to such information. Further, agency managers reported to the IG that they could not eliminate or reduce the amount of performance awards paid to employees, even those with substantial “Other Time” billing, due to their understanding, or lack-thereof, of labor agreements, in addition to fears of being subject to EEO or union complaints for attempting to address the “Other Time” issue.
Also documented by the IG was confusion among employees and supervisors of telework policies. The misunderstandings came from the different levels of policy, including laws passed by Congress, Commerce Department policy, USPTO and component policies, and the collective bargaining agreement (CBA) with the union.
The IG recommended clear training for all employees, supervisors, and managers on telework to ensure full understanding of, and compliance in the future with, those rules. Also recommended were a look at the effectiveness of PTAB’s management and workforce model and the agency-union labor agreement.
A second report in The Washington Post highlighted differences between a draft and final administrative inquiry conducted by USPTO management into claims of time and attendance abuse by patent examiners working under the USPTO’s telework and hoteling programs.
The Post article suggests that the draft version, at 32 pages, offers greater detail into the reality of a management and culture problem at the agency. USPTO officials said the draft version was just a draft, and that the 16 page final administrative report is more accurate because it did not include information that could not be substantiated.
Both the draft and final administrative inquiry raised many of the same issues, although with different levels and types of details, including concerns about time and attendance representation by employees, questions about how supervisors should certify employees’ time and attendance reports, “Big Brother” concerns related to management utilizing employee computer records to assess the accuracy of time and attendance reports, poor policies on how frequently remote workers should check in with their supervisor, and concerns over “end-loading,” a practice where employee would leave large chunks of work to be accomplished at the end of productivity periods, making it difficult for supervisors to monitor the quality of the work.
Similar to the issues raised in the IG report, the administrative inquiry identified deficiencies in training and understanding of agency policy for employees, supervisors, and managers exacerbated the problems at USPTO. The administrative inquiry recommended more training for supervisors on various policies, as well as better guidance on time and attendance monitoring and certification.
For instance, the administrative report also found the agency lacked a clear policy to guide supervisors on how to certify the time and attendance of employees. When supervisors sought to take action against employees, higher-level managers pushed back on granting access to pull computer usage records, over fears of being perceived as “Big Brother” and causing issues with the union. Moreover, senior agency leadership did not want the agency’s spot as a ‘Best Place to Work’ to be jeopardized, some interview quotes included in the draft version of the administrative inquiry said.
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